Steward, R (On the Application Of) v Director of Public Prosecutions

1. MR JUSTICE MAURICE KAY: This is an appeal by case stated from an adjudication of a Magistrates' Court sitting at Portsmouth on 22nd January this year. The appellant, Gary David Steward, faced a charge that on 6th August 2002 he had driven a motor vehicle on the M27 after consuming so much alcohol that the proportion of it in his blood, namely 97 milligrams of alcohol in 100 millilitres of blood, exceded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988. He pleaded not guilty and the trial occurred on the 22nd January. Eventually the justices found the case proved. They fined the appellant £500 plus costs, endorsed his licence and disqualified him for 12 months.

2. The evidence came mainly from two police officers, PC Davis and PC Jackson. It was PC Davis who had encountered the appellant on the M27 and who administered the breath test at the roadside; that test proving to be positive. The appellant was then arrested and taken to Fareham police station. The evidence of PC Jackson related to events at the police station. The case stated contains these findings:

"We found the following facts form the sworn evidence of PC Jackson:

A) He was the authorised intoximeter operator who undertook this procedure in respect of the appellant at the Police Station. The appellant provided two specimens of breath; the lower of the two readings was 41 microgrammes of alcohol in 100 millilitres of the breath.

B) The appellant then elected for the specimen to be replaced by a specimen of blood.

C) He [PC Jackson] arranged for Dr Bell, Police Surgeon, to attend.

D) He observed Dr Bell obtain the appellant's consent to blood being taken and then Dr Bell actually take two specimens of blood from the appellant.

E) One sample of blood was given to the defendant.

F) PC Jackson took the second sample from Dr Bell at 2158 hrs."

The remaining findings in relation to his evidence concern the transmission of the samples and is not material to this appeal.

3. The other witness who gave evidence (by way of witness statement) was Dr Trotter, an authorised analyst. He produced his certificate relating to the proportion of alcohol found in the blood specimen. At the end of the prosecution case a submission of no case to answer was made on behalf of the appellant. The contention was that there had been no oral evidence or a certificate from Dr Bell, and that therefore there was no evidence upon which the appellant could be convicted.

4. The justices heard rival submissions and then retired. When they came back, the case stated records in paragraph 9:

"We ruled there was no case to answer on the basis we believed that Dr Trotter's certificate should have been served at least seven days before the hearing. The evidence of analysis of the blood was therefore inadmissible. Therefore an essential element of the offence was missing.

10. a) Upon the decision of No Case to Answer being announced, the prosecuting solicitor asked which certificate was referred to by the Bench; upon the Chairwoman's reply that it was the analyst's certificate, he stated (and it was agreed by the defence) that the statement of the analyst was not in dispute, and had been accepted under section 9 of the Criminal Justice Act 1967 and read to the Court. The issue was as to the absence of evidence from Dr Bell to prove that he was a medical practitioner and that the samples had been taken with the Appellant's consent.

B) We sought advice from the legal adviser as to whether we could now review our decision. The legal adviser advised us that we were able to review our decision.

C) as the basis of our decision of No Case to Answer was that we believed that a certificate by Dr Trotter had to be served at least seven days before the hearing, or otherwise the certificate by him ... was inadmissible ... we realised that we had erred in finding no case to answer on this basis.

D) The prosecution clarified that the certificate/statement by Dr Bell was not necessary because PC Jackson had observed the consent being given and was aware Dr Bell was a police surgeon."

Once their mistake had been explained to them and agreed by all, after further consideration the magistrates found that there was a case for the appellant to answer, despite the fact that the prosecution had not produced any statement or certificate from Dr Bell and he had not given evidence. The case stated then refers to the fact that PC Jackson had given evidence that the blood samples were taken by Dr Bell at the election of the defendant, and that PC Jackson had been present when the blood samples were taken. The case therefore proceeded.

5. The appellant did not give or call any evidence. It seems that the appellant's solicitor submitted, either following the reconsideration or in final submissions, that the magistrates were not entitled to re-open the case after finding that there was no case to answer. The submission was made that PC Jackson's evidence was not capable of being accepted in substitution for the attendance of Dr Bell or a duly signed statement from him under section 16(2) of the Road Traffic Offenders Act 1988. It was further submitted that there was insufficient evidence upon which they were entitled to convict the appellant.

6. However, they found the case proved. In paragraph 14 of the case stated they explain why. It says:

"a) In this case, the prosecution relied on the evidence of PC Jackson that the two blood samples were taken by Dr Bell from the defendant, with his consent. We were satisfied on this evidence that the sample was taken from the appellant with his consent by a medical practitioner. PC Jackson had given evidence a police surgeon was arranged and this was Dr Bell. Therefore the evidence of the taking of the blood sample was admissible."

A little later:

"We were entitled to reverse our decision ... because we had not finished hearing the case and it became quite clear that we made our decision on the submission of no case to answer on the mistaken belief that it was Dr Trotter's certificate that was in issue...

"We found there was sufficient evidence to satisfy us beyond reasonable doubt that the defendant was guilty of the offence charged."

7. The appeal to this court is put on three bases. The first ground of appeal relates to the magistrates proceeding to hear the case after finding that there was no case to answer. In short, the submission of Mr Lofthouse, on behalf of the appellant, is that from the moment the magistrates ruled that there was no case to answer, the magistrates were functi officio . He submits that the utterance of the words "no case to answer" amounted to an acquittal. He points out that under section 9 of the Magistrates' Court Act 1980 a magistrates' court in a summary trial has only two choices: either to convict the accused or to dismiss the information. He submits that by the utterance "no case to answer" the information was dismissed. In support of this submission he refers to R v Essex Justices ex parte Final [1963] 2 QB 816. In that case, having heard the evidence and retired to consider it, the magistrates returned and announced that the case had been proved and that a fine of £3 would be imposed. At that point the defendant's solicitor began to make submissions to the effect that the case had not been proved, adverting to factual evidence that was or was not before the court. He succeeded in persuading the Bench to reconsider their verdict. When they did so, the justices dismissed the information. The Divisional Court held that the justices had erred in so doing because they were functi officio and had no jurisdiction to substitute an acquittal for a conviction or vice versa. The Lord Chief Justice, Lord Parker, said at page 820:

"It is perfectly clear that what the chairman of the bench announced amounted to a conviction ... it is perfectly clear that the justices intended and were understood to find that the case against the defendant had been proved and to have inflicted a fine of £3."

Counsel for the defendant had contended for a principle to the effect that if, before dispersing, a matter was drawn to the attention of the Bench which would make them change their minds, they were at liberty to do so and substitute an acquittal. The Lord Chief Justice said at page 821:

"There is clearly no statutory power to enable them to do so nor do I think that there is any inherent power. They are, in my judgment, functi officio from the moment when they have announced their decision, however inconvenient the result may be."

Gorman J agreed, as did Salmon J, who said at page 823:

"It is quite plain on authority that once a decision by justices is announced in open court that decision so announced amounts either to an acquittal or to a conviction, as the case may be. Once the justices have convicted or acquitted, they are functi officio and cannot alter their decision."

Mr Lofthouse additionally relies on S v Recorder of Manchester [1971] AC 481, to which I shall make brief reference later.

8. Mr Lofthouse also observes that the Magistrates' Court Act 1980 contains provisions permitting a Magistrates' Court to re-open a case to rectify mistakes. Those provisions are to be found in section 142. However, they do not extend to the circumstances of the present case. This leads to the submission that if Parliament had intended a case to be re-opened, in the manner in which it was in the present case, it would have extended the power of rectification to cover such circumstances.

9. In my judgment, the position for which Mr Lofthouse contends is highly schematic and artificially so. As my Lord observed in the course of submissions, it is a matter of chance as to whether magistrates begin a ruling with references to the evidence with the intention of only making clear their finding of no case at the end, or whether, as here, the conclusion preceded the reasons.

10. In the former case, if the solicitor had spotted an error in the course of the review of the evidence it is a matter of chance as to whether he would have interrupted immediately or waited until the end. This is not at case like the Essex Justices case where a Bench was persuaded to re-open the case and, in effect, hear further submissions as to the evidence. It is a case of an error having been identified, having been agreed by the defendant's solicitor and having been admitted to by the magistrates. I do not consider that that comes within the principles set out in the Essex justices case, or in the case of S in which Lord MacDermott referred at page 498 to the point where: "... the process of adjudication .... had been completed and was effective in point of law, " as the cut off point.

11. In my judgment that point had not been reached in this case. In making that statement I also have in mind the fact that at the time of the Essex Justices case it was not usual for magistrates to give reasons at all and, therefore, the announcement of the decision one way or the other was laconic in the extreme. Now that the giving of reasons is common, the process of adjudication is extended. Mr Lofthouse suggests that there are also strong policy reasons for this court to adopt the approach taken in the Essex Justices case, the policy being one of discouragement of attempts at second bites at the cherry. However, there are also strong policy reasons for taking a broader view. Where, as here, magistrates make a mistake and both parties agree, and the magistrates agree that they have made such a mistake, policy and common sense favour its immediate rectification without the cost and delay of an appeal by case stated.

12. For all these reasons, I do not accept the first ground of appeal advanced by Mr Lofthouse. I turn, therefore, to the second ground.

13. Mr Lofthouse puts it in this way. No evidence was called from or provided by Dr Bell. By section 15(4) of the Road Traffic Offenders Act 1988:

"A specimen of blood shall be disregarded unless it was taken from the accused with his consent by a medical practitioner."

Mr Lofthouse submits that the legislation is a careful and complete code and requires that the issues of the taking of a blood specimen (a) by a medical practitioner and (b) with the consent of the accused, cannot be established without evidence from the medical practitioner either by oral evidence or by certificate.

14. The certificate process is governed by section 16 of the Road Traffic Offenders Act and, in particular, section 16(2), which provides:

"Subject to subsections (3) and (4) below, evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner may be given by the production of a document purporting to certify that fact and to be signed by a medical practitioner."

The submission advanced by Mr Lofthouse is essentially that section 16(2) is mandatory and that there can be no evidence about consent or the qualifications of the medical practitioner, save from the medical practitioner himself usually through the certification there provided for. His submission is that the legislation is permissive as to whether the doctor's evidence is oral or by way of certification, but it is mandatory that it is the doctor who provides it. He contends that the provisions of the Act would be unnecessary if a police officer could give evidence, which the Act envisages coming from a medical practitioner. He further submits that the strictness of such a requirement makes good sense since it is consent at the time of the taking of the sample that is relevant and the medical practitioner is the best placed person to assess that.

15. I do not accept these submissions. It is abundantly clear from the words of section 16(2) that it is permissive. That much is plain from the word "may". Its purpose is to provide a way which enables the prosecution to present evidence with minimal cost and inconvenience. However, in my judgment, it is not the only evidence which is admissible on the issues of consent or the qualifications of the medical practitioner. To take two examples that were canvassed in the course of submissions. If the accused person had been interviewed under caution in the police station and had admitted in the course of that interview that he had consented to the taking of the blood sample, it is absurd to suggest that that evidence would not be admissible to prove his consent in the absence of a certificate or other evidence from the medical practitioner. Moreover, if there were a dispute about consent in the course of the evidence, and the police officer who was present was able to give evidence as to what had happened, supporting or contradicting the evidence of the doctor, there is absolutely no reason why the police officer should not give such evidence. Indeed, it seems to me that if there were such a colourful dispute it would be the duty of the defence advocate to cross-examine the police officer in relation to it, as it would be inevitable that he would have been present and in a position to provide evidence about the disputed matter.

16. Accordingly, I conclude that there is nothing in this second ground of appeal.

17. The third ground of appeal is to some extent a continuation of the second ground but is put in global terms, to the effect that there was no or insufficient evidence upon which the appellant could be convicted. Again, the points which Mr Lofthouse seeks to make relate to the issues of consent and the medical practitioner. I return again to the wording of the case stated, which reports that the magistrates found as facts from the evidence of the PC Jackson: (i) that he had arranged "for Dr Bell, police surgeon to attend", and (ii) that he had observed Dr Bell obtain the appellant's consent to blood being taken and then Dr Bell actually taking the blood samples from the appellant.

18. It is not suggested that that evidence was challenged in any way, or that any issue about those matters was raised with PC Jackson. It is also instructive to have regard to the context. This is not a case in which the driver was being required to provide a blood sample pursuant to section 7 of the Road Traffic Act 1988. It is a case in which the blood samples were being taken as a result of the appellant's election under section 8(2) of that Act, which provides:

"If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used."

I observe that that section is headed "Choice of Specimens of Breath".

19. In my judgment, it is plain on the face of the case stated that there was evidence as to the taking of the samples by Dr Bell. There was evidence that the appellant consented to that course and there was evidence that Dr Bell was a medical practitioner; it is fanciful to suggest that he was not.

20. Mr Lofthouse complains that the case stated is defective because it does not disclose whether the findings about consent and, to a lesser extent, the status of the medical practitioner were matters of direct evidence from PC Jackson or were inferences drawn from parts of his evidence. We agreed to look at the notes taken by the legal adviser to the justices, but we do not find that they take the matter any further. I propose to ignore them.

21. I see no reason not to take the case stated at face value. The position adopted by Mr Lofthouse is that the case stated is defective because it does not properly separate the findings from the evidence upon which they were based, and it does not make clear that which was based on direct evidence and that which was based on inference. He refers to rule 81 of the Magistrates' Court Rules 1981.

22. I do not accept his arguments about that. The case stated is, in my judgment, unequivocal. These criticisms of its contents relating to the facts that were found seem to me to be utterly unmeritorious and I reject them. It follows that I am not persuaded by this third ground of appeal.

23. I therefore turn to the three questions that are posed in the case stated for the consideration of this court. Question 1:

"Whether the Justices were entitled to re-open the case after finding that there was no case for the defendant to answer."

I answer that in the affirmative. Question 2:

"Whether, in the absence of a certificate from a medical practitioner certifying that a sample of blood had been taken from the defendant with his consent or oral evidence from the medical practitioner, the Justices were entitled to rely upon other evidence to show that such a sample had been taken."

Again, I answer that in the affirmative. Question 3:

"Whether there was evidence upon which the Justices were entitled to convict the defendant."

Once again I answer that in the affirmative.

24. Accordingly, I would dismiss the appeal.

25. MR JUSTICE CRANE: I agree.

26. MR PARISH: My Lord, the disqualification of the appellant was in fact suspended pending appeal, I do not know whether it is necessary or perhaps desirable, I understand the appellant is in court, for this court to make clear that that disqualification takes effect from, as I understand it, this moment?

27. MR JUSTICE MAURICE KAY: What happens in those circumstances? What is the present whereabouts of his licence?

28. MR PARISH: I think he would have had it back. He would have been given it back pending the appeal.

29. MR JUSTICE MAURICE KAY: It will not have been endorsed yet obviously.

30. MR LOFTHOUSE: My Lords, I am not sure whether it has physically been endorsed. I know that the court is obliged to inform the Secretary of State when it has suspended the same licence. The mechanics, I do not know, but the appellant understands.

31. MR JUSTICE MAURICE KAY: First of all, we order that the sanctions imposed by the magistrates are no longer suspended and they take effect. Secondly, if that requires any action on the part of the defendant in relation to the production of his licence, we order that he does that which he is required to do.

32. MR LOFTHOUSE: My Lord, I think there is no need for an order it bites automatically.

33. My Lords, may I trouble your Lordships just for a moment or so longer. Your Lordship's judgment on issue (i) is, if I may say so, with respect, a crucial judgment for the practical management of Magistrates' Courts. It will be looked to for guidance as to what practitioners may and may not do for many years to come, and will widen the scope for argument, or rather has declared the scope wider than was previously appreciated. My Lords, in the circumstances, may be this is not the moment in which to argue it, but it may be better to argue after the formulation of the question, I invite your Lordships to say that since this is the first time ever, so far as we can ascertain, that so wide a jurisdiction has been declared to exist in the justices, and since the previous authority appears much narrower and appears to have no criticism in the House of Lords in S , that this is a proper case for a certificate, whether your Lordships then grant leave is another matter. But there can hardly be a more important point of general public importance for the summary court that tries so much of our crime than what they can or cannot do when they perceive themselves to have made an error. My Lord, that must be a point of general public importance. I invite your Lordships to consider certifying the question much in the terms of the first question on the case stated. It would need a little adjustment and I might produce, with leave of my learned friend, a form for that, but I invite your Lordships to consider that important question to be certified at any rate.

34. MR JUSTICE MAURICE KAY: Thank you. No, we shall not certify.

35. MR LOFTHOUSE: My Lord, so be it.

36. MR JUSTICE MAURICE KAY: Thank you both very much.